Public has no right to access PM's agenda, Supreme Court rules
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The Supreme Court of Canada has turned back an attempt to let the public see information held by top elected officials in the federal government.

The decision means that daily agendas produced by the prime minister and his cabinet are not subject to public scrutiny.

In a
unanimous ruling Friday morning, the court said that the federal Information Commissioner incorrectly argued in favour of an access-to- information regime that would greatly expand the duty of top officials to disclose sensitive information.

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"As the Government rightly argues, such interpretation would dramatically expand the access to information regime in Canada, a result that can only be achieved by Parliament," Madam Justice Louise Charron wrote for the court.

At stake were access requests for former prime minister Jean Chrétien's daily agendas, as well as those of his transport minister and notes by his defence minister and staff.

The decision - that was followed by news of the
impending retirement of two Supreme Court justices - ended a tug of war between Ottawa and the Information Commissioner of Canada over what level of accountability top government offices owe to the public.

In arguments at the court, lawyers for the Information Commissioner warned that a decision in favour of the government would give officials carte blanche to channel sensitive documents into ministerial offices, effectively making them impregnable.

Several media groups joined the fray, arguing that successive federal governments' penchant for suppressing information has made Canada fall out of step with most other democracies and with international law.

The Harper government - which picked up the litigation from where its predecessor Liberal government left off in 2006 - has been feeling intense pressure over its purportedly secretive ways.

Four separate access-to-information requests by opposition politicians and members of the media were at the heart of the appeal. They sought minutes, agendas, e-mails and day timers that related largely to Mr. Chrétien's use of government aircraft, and to high-level national defence meetings.

At the time, the media were doggedly pursuing questions about the Afghan war and Mr. Chrétien's whereabouts on particular days. When the requests were turned down, they and the opposition appealed to the Information Commissioner.

The key to the case was whether the office of the prime minister or a cabinet minister could be considered a "government institution" for the purposes of applying the Access to Information Act.

The government argued that documents held in ministerial offices are not meant to be subjected to the same public scrutiny as those kept in government departments, and that ministerial offices are separate from the department over which a minister presides.

Federal lawyers asserted that the documents were personal to Mr. Chrétien or other ministers, and must therefore remain confidential.

Judge Charron said Friday that requesters have the right to be given "any record under the control of a government institution."

Without doubt, she said, the Privy Council Office, the Department of National Defence and the Department of Transport are government institutions.

"The question is whether each government institution includes the office of the minister who presides over it," she said. "In other words: Is the Prime Minister's office part of the PCO? Is the office of the minister of national defence part of the Department of National Defence? Is the office of the minister of transport part of the Department of Transport?"

The answer is no, Judge Charron said.

However, she assured that a two-step test set up by the courts will provide a screening device to ensure that the government does not place documents in an inaccessible "black hole."

Federal lawyers had claimed in the case that it would be folly to compromise the confidentiality of documents which could affect domestic and international relations.

They warned that top ministers cannot operate effectively if they must live in fear of seeing sensitive documents placed in the hands of outsiders.

However, the Information Commissioner argued that a democracy cannot function properly when senior elected officials are permitted to conceal documents they view as embarrassing or their personal property.

The intervenors argued that accessible information plays a vital role in exposing government wrongdoing.

Paul Schabas, a lawyer for the press intervenors, told the Supreme Court that courts in numerous democracies have asserted the necessity of access to information as a fundamental democratic right.

"Canada has relinquished its early leadership in the field," Mr. Schabas argued. "If the lower courts' decisions are permitted to stand, Canada will be an outlier in holding that the geographic location of records in minister's departmental offices - rather than their content - determines the public's access to them."

At one point during the fractious history of the case, the Information Commissioner said the government was being unco-operative and issued subpoenas to senior departmental staff and former ministers ordering them to search more diligently for specific documents.

For their part, government lawyers refer to the commissioner in legal arguments as being "misguided."

When the requests were made, opposition parties in Parliament had alleged that Mr. Chrétien arranged private health care in the United States for a family member and used the military to cover up the trip. They claimed that he was visiting a clinic in Minnesota when he missed the February, 1999, funeral of King Hussein of Jordan.

At trial, Federal Court Justice Michael Kelen sided with the government. "If Parliament wants the PM's agendas open to the public, Parliament must amend the Access Act in such a way as to make this possible," he said.